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en-usTechdirt. Stories filed under "illinois"https://ii.techdirt.com/s/t/i/td-88x31.gifhttps://www.techdirt.com/Thu, 28 Sep 2017 09:45:11 PDTPolice Chief Takes To Facebook To Complain About A Journalist Committing JournalismTim Cushinghttps://www.techdirt.com/articles/20170926/10574738291/police-chief-takes-to-facebook-to-complain-about-journalist-committing-journalism.shtml
https://www.techdirt.com/articles/20170926/10574738291/police-chief-takes-to-facebook-to-complain-about-journalist-committing-journalism.shtml
Cops and the press can be best friends. In some cases, they are. Anytime an officer shoots or beats someone, at least one obliging outlet steps up to publish the department's statement as well as any criminal history they've been able to dig up on the shooting/beating victim. And if the police aren't willing to turn over criminal records, some outlets will do the heavy lifting for them.

But they can also be antagonists. Generally speaking, law enforcement is a closed shop. It usually takes diligent efforts by journalists to pry loose documents pertaining to misconduct or misbehavior. State laws tend to make this more difficult than it should be by granting law enforcement agencies tons of public records exemptions.

The department's Facebook post opens up with some speculation about the journalist's intentions:

For six months, a reporter at a local newspaper has been seeking essentially the complete case file of the tragic incident where a young man took his own life after exchanging gunshots with an Aurora Police officer in October, 2016. Both the reporter and the publication were especially interested in the officer’s dash cam video of the traffic stop that began the entire episode in an apparent attempt to disprove its justification. (The publication wrote an editorial on March 26, 2017, calling into question the officer’s actions and our explanation of events.) You can see the stop and events that led up to it on this post.

After pausing to note the state attorney general ruled in the department's favor in the dispute over the unreleased documents (and to praise the officer involved for his bravery and clearance of wrongdoing by the Illinois State Police investigation), Chief Ziman goes on to gripe at length about pesky journalists and public records requests. (Emphasis added.)

Aside from the video of the traffic stop, the reporter’s voluminous FOIA request included requests on all past contacts we had with Mr. Martell; past contacts we had with the driver of the car from which the original traffic stop initiated and that Mr. Martell had run from; and other detailed information on witnesses or other parties in the case. We denied the release of much of the information because doing so would have possibly identified witnesses or other bystanders--- something I find unacceptable as Chief of Police.

[...]

This is not the first request from this particular reporter that requires dozens and dozens of employee hours to fulfill. In fact, this is a regular practice for her--- many of which consist of hundreds of pages. When a FOIA request is filed, there is certain information we cannot release by law. Each FOIA filed with the police is reviewed by at least three people: the FOIA officer who assures the request is within legal parameters, a trained records clerk who redacts information that cannot be released, and an investigations supervisor who reviews the documents to assure nothing is released that shouldn’t be.

While I understand FOIA’s enhance openness and public transparency, many of the FOIA’s this reporter files don’t result in published articles. The hours the city has worked to fulfill her FOIA requests has cost taxpayers and resulted in police supervisors devoting their time on FOIA requests rather than concentrating on our crime fighting initiatives. The demand for trust between the community and the police is prolific. At some point, there has to be a trusting relationship between the media and the police.

First off, while it may be a pain to fulfill requests, the law allows citizens to file them. The state is obligated to fulfill them. Listening to someone complain about a singular aspect of their job directly related to accountability doesn't exactly affirm a stated commitment to accountability.

Further, the post insinuates records requests by this reporter are resulting in less crime fighting. This post invites the public to view the reporter as an impediment to efficient law enforcement, rather than someone simply doing her job as a journalist using tools the state has given her.

More statements made by Chief Ziman on Twitter distance her further from her supposed embrace of accountability. She mentions she doesn't care for the "fishing expedition mentality," but that's exactly what journalism is. It's seeking documents and info until enough is compiled to put an article together. The fact that some requested documents are never used by journalists does not make those requests any less valid.

Finally, the Facebook post says "there has to be a trusting relationship between the media and police." No, there absolutely does not. This is completely wrong. Journalism is nothing more than stenography if it allows government agencies to steer narratives and coverage. Chief Ziman seems to think reporters should accept every statement made by police officials at face value, rather than seek underlying documents. That's not trust. That's obeisance. It's worthless in the context of transparency and accountability.

Chief Ziman would rather be allowed to release only the documents she wants to release on a schedule that's convenient to her and her department. The problem is journalists, like the one she publicly berates here, keep getting in the way of her idealized trusting relationship with the press. The government needs more outside skepticism, not less, to keep it in line. Law enforcement officials complaining about lawful activity is always a bad look, especially when they're not being given the trust they're so obviously willing to undermine.

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]]>a-new-era-of-beef-is-upon-ushttps://www.techdirt.com/comment_rss.php?sid=20170926/10574738291Thu, 31 Aug 2017 15:32:47 PDTCourt Dumps Lawsuit Against Zillow Over Its Inaccurate 'Zestimates'Tim Cushinghttps://www.techdirt.com/articles/20170829/11593938106/court-dumps-lawsuit-against-zillow-over-inaccurate-zestimates.shtml
https://www.techdirt.com/articles/20170829/11593938106/court-dumps-lawsuit-against-zillow-over-inaccurate-zestimates.shtml
Earlier this year, real estate litigator and aggrieved homeowner Barbara Andersen sued Zillow for providing a lower "Zestimate" than she believed her house was worth. She alleged Zillow violated Illinois state law by portraying its estimates as appraisals, even though it lacked the proper licensing to perform appraisals. Andersen sought an injunction blocking Zillow from posting information about her home (even publicly-available information) and offering a "Zestimate" on its selling price.

Andersen has just had her case tossed, although she's now representing others in a proposed class action against Zillow. At some point between February and earlier this week, Andersen's case was moved to a federal court and she's now listed on the bottom of court documents (as counsel of record), rather than up top as a plaintiff.

The new lead plaintiffs are three Patels disputing Zestimates of their multi-million dollar properties. (This rearranging of plaintiffs and lawyers [and lawyers who were also plaintiffs] is unsettling, especially for those of us who learned what we know of the real estate business via repeated viewings of "Glengarry Glen Ross.")

The Patels (and "others similarly situated") aren't happy with Zillow. The Patels (collectively) have multiple properties on the market, all listed at prices considerably higher than Zillow's Zestimates. They claim, as Andersen did, that Zillow violates state law by offering something homebuyers might believe is an appraisal. A variety of interconnected laws results in the Patels attempting to coax a federal court into killing Zillow's estimates. As Eric Goldman summarizes, the Patels have gone down on strikes.

An Illinois putative class action was brought against Zillow over the zestimate on three grounds: (1) the zestimate was an unlicensed appraisal, (2) the house profile and zestimate constituted an intrusion into seclusion, and (3) Zillow’s practices violate state consumer protection laws. Zillow wins on a 12(b)(6) motion to dismiss.

Privacy Invasion. There’s no intrusion when the zestimate is based on public data sources. The plaintiffs also don’t explain how the intrusion is “offensive” or plead the required “anguish and suffering.”

Consumer Protection Laws. The court says the zestimates are not false, misleading or confusing

Goldman also points out no serious person is likely to confuse a Zestimate with an appraisal… at least not if they expect to be taken seriously. Courts in cases dug up by Goldman have called Zillow Zestimates everything from "inherently unreliable" to "incapable of accurate" valuations. One judge concluded "internet searches are insufficient evidence of property value," spreading the besmirchment to Zillow's competitors and pre-trial Googlers.

Zillow pled a First Amendment defense for its publication of lousy Zestimates and other public data. The court [PDF] doesn't make any attempt to address this pleading as it finds plenty it doesn't like about the state law claims.

Zillow argues that the First Amendment requires dismissal of all of Plaintiffs’ claims. (R. 18, Mem. Supp. Mot. Dismiss, 3.) Additionally, Zillow contends that First Amendment concerns aside, Plaintiffs fail to plead the required elements of their claims. (Id. at 9.) While Zillow makes persuasive arguments with respect to the First Amendment, the Court need not and should not rule on them conclusively because Plaintiffs’ claims fail under Illinois statutory law.

As the court points out, Zestimates are nothing more than "nonactionable statements of opinion" -- statements that result from no intrusion in personal privacy (because publicly-available info is used) nor violation of real estate regulations in Illinois.

All claims have been dismissed without prejudice, meaning real estate litigator (and litigant) Barbara Andersen is welcome to try again. But she -- like the Patels she now represents -- will need to find a better angle than alleged state law violations to take another run at estimates they all subjectively feel are on the low end.

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]]>conclusory-arguments-are-empty-argumentshttps://www.techdirt.com/comment_rss.php?sid=20170829/11593938106Fri, 3 Mar 2017 06:19:47 PSTEFF: Data Collected From Utility Smart Meters Should Be Protected By The Fourth AmendmentKarl Bodehttps://www.techdirt.com/articles/20170302/06563736823/eff-data-collected-utility-smart-meters-should-be-protected-fourth-amendment.shtml
https://www.techdirt.com/articles/20170302/06563736823/eff-data-collected-utility-smart-meters-should-be-protected-fourth-amendment.shtml
For years, electric utilities have increasingly embraced smart meters. Roughly 65 million of the devices have been installed in the United States over the last few years, with 57 million of them in consumer homes. The meters provide innumerable benefits to utility companies, often delivering an ocean of new remote access and monitoring tools to better manage the network and reduce meter reading truck rolls. The benefits to consumers (outside of accuracy) have been less notable, including interference with some home routers, as well as the fact that a number of models have been shown to be relatively easily hacked.

In addition to hackability, the sheer volume of data being gobbed up by utility companies tells an awful lot about you (when you wake, when you sleep, when you're home or away). This has, at times, sparked outrage from locals in places like Naperville, Illinois, where, since 2011, meter opponents have been fighting the intrusive nature of the devices:

"...Opponents say the meters provide so much information that everyone from cops to criminals to marketing departments can learn when people are home and what they do when they're there. Last year, the anti-meter movement fell just short of collecting enough signatures to place a question on the ballot asking residents to decide whether the devices should be removed. They also have a pending federal lawsuit against the city alleging that their constitutional right to due process has been violated."

That was 2013. In 2015, the city of Naperville was forced to settle with one smart meter opponent after she sued the city and four of its police officers for violating her constitutional rights. That same year, another man sued the city over what he claimed was an unwarranted search into his home. But last fall, a federal district court in Illinois declared that Americans can't reasonably expect any privacy in the data collected by these devices, and utility collection of it is completely beyond the protection of the Fourth Amendment.

That case is currently on appeal to the United States Court of Appeals for the Seventh Circuit. And the EFF and Privacy International have asked the Seventh Circuit if they can weigh in on the case. In a blog post, the EFF points out that the court's decision was based on a misunderstanding of how the technology actually works. Basically, the court assumed that these new meters work in exactly the same way as their older counterparts, ignoring the significantly-expanded data collected:

"The court was convinced that data collected from smart meters is no different from data collected from analog meters, in terms of what it reveals about what’s going on inside the home. But that’s simply not the case. Smart meters not only produce far more data than analog meters—those set at collecting data in 15-minute intervals produce 2,880 meter readings per month compared to just one monthly reading for analog meters—but the data is also far more intimate. A single monthly read of cumulative household energy use does not reveal how energy is being used throughout the course of a day. But smart meter data does. And its time granularity tells a story about what is going on inside the home for anyone who wishes to read it."

As we've seen with cellular location data, once companies collect this information, it's often sold to any number of third parties who may be using this data in ways that aren't always in your best interests. But as Tim Cushing has occassionally noted, getting companies to be forthcoming about what they're collecting and who they may be selling it to is sometimes difficult, with at least one company suing to thwart transparency efforts on the subject in Seattle. And as Glyn Moody has also noted, this collision between privacy rights and utility data collection on the smart meter front isn't just an American phenomenon.

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]]>I-always-feel-like-somebody's-watching-mehttps://www.techdirt.com/comment_rss.php?sid=20170302/06563736823Mon, 23 Jan 2017 16:57:21 PSTArrested Flag Burner Sues Arresting OfficersTimothy Geignerhttps://www.techdirt.com/articles/20170116/08441836489/flag-burner-that-urbana-il-police-arrested-sues-arresting-officers.shtml
https://www.techdirt.com/articles/20170116/08441836489/flag-burner-that-urbana-il-police-arrested-sues-arresting-officers.shtmlarrested for posting a picture of himself burning the American flag on his social media accounts. The story was strange on a variety of levels. First, the law utilized to arrest him, one of many flag-burning prohibitions that exist in laws at the state level, had been declared unconstitutional decades prior to it having ever been enacted. Burning the flag has been codified as a form of protected free speech, no matter how stomach-turning any individual might find it. It was for that reason that the local State's Attorney's office requested that the police let Mellott go and didn't even attempt to bring any kind of charges against him, because they couldn't. The police report also noted that Mellott had been taken in for disorderly conduct, referencing the backlash his actions caused, which is insane. Blaming a victim of threats for receiving those threats as a reaction to protected speech ought to be beneath the common citizen, nevermind those we actually entrust to enforce the law.

But perhaps the strangest part of the story, previously un-noted by us in our original post, the impetus for Mellott's arrest was one officer's apparent desperate search to find something for which to arrest him.

Mellott’s post was widely shared and had received 200 comments by the following morning. But just 12 hours after his post, Urbana police officers arrested him at his job at Wal-Mart after Mellott’s supervisor called and reported threats made by unknown people against Mellott and the store. Officer Jeremy Hale researched the Illinois flag-desecration statute, found it was still on the books, and decided of his own accord to enforce it.

Policing in this country isn't traditionally done in this way. Complaints to a local law enforcement office aren't generally then used to scour the books for some potentially applicable law. For this reason, Mallott is suing the three arresting officers for violating his civil rights.

Mellott filed a civil-rights lawsuit late Wednesday in Urbana federal court, claiming the three arresting officers knew or should have known that flag burning has been a protected means of political protest for almost 30 years. He says they violated his civil rights by arresting him. Mellott seeks compensatory damages and a court order that the Illinois flag-desecration statute is unconstitutional. He is represented by Rebecca Glenberg with the Roger Baldwin Foundation of the American Civil Liberties Union.

“Open dissent is the highest form of American patriotism,” Mellott said in a statement. “And it was a frightening display of irony that on the Fourth of July, I should be taken from my workplace to sit in a county jail for exercising this liberty.”

It's difficult to see how this lawsuit isn't a winner. The Illinois state law is, on its face, flatly unconstitutional. That it was enacted decades after this question was decided says everything about the Illinois legislature and the rise of nationalism nationally and nothing about whether or not it might be remotely legal or enforceable. For Mellott to have been arrested and held for hours in a zealous attempt to punish protected speech, and on Independence Day no less, is about as blatant example of an infringement on the First Amendment of which I can think.

There was some irony there, in that Kittos himself was a refugee from Turkish occupation in Cyprus and escaped to the UK. His photo is still up on Flickr, and does say that it's "all rights reserved." At the time, Kittos only hinted at a lawsuit, but also said "I don't know if I have the patience" to follow through on a lawsuit. We did notice that a week or so later, Twitter had removed the image after receiving a DMCA takedown notice from Kittos.

Some interesting points about the lawsuit. Kittos did register the image... but not until after all this went down. The Copyright Office lists the registration date as October 3rd of this year:

That's why the lawsuit asks for "actual damages" rather than statutory damages (you can only ask for statutory damages if the work was registered prior to infringement). But good luck showing any actual damages.

The bigger issue, though, is that this is almost certainly a bogus copyright infringement case. The Trump campaign has a pretty strong fair use argument, helped along by Kittos himself originally admitting that "I have never put this image up for sale" and "I was just experimenting with something called off-camera flash." There goes prong four of the fair use test, the "effect on the market," when the plaintiff has already admitted there never was a market. Also, the lawsuit itself makes it pretty clear that the lawsuit isn't really about copyright infringement, but about Kittos being upset about the message of the Trump meme.

I get that. I mean, I agree that the tweet is stupid and ignorant. But that's not the role of copyright. And yet, throughout the lawsuit, Kittos' lawyer keeps pointing to the "offensive" nature of the content as the reason that it's infringement. But that does not matter at all for a copyright infringement claim.

The unauthorized use of the Photograph is reprehensibly offensive to
Plaintiff as he is a refugee of the Republic of Cyprus who was forced to flee his home at
the age of six years old.

That's an interesting news hook, but it has nothing to do with copyright.

Also, given that this is someone trying to silence a political campaign, it seems fairly obvious that this is actually a SLAPP lawsuit, rather than a legitimate copyright lawsuit. Of course, that may explain why the lawsuit was brought in Illinois (remember, Kittos is in the UK, and the Trump campaign is certainly not based in Illinois). Illinois has an anti-SLAPP law, but it's been interpreted narrowly, and it's unclear if it would be allowed here -- though it's possible. The key case, Sandholm v. Kuecker, does include a test on "the plaintiff's intent in bringing the lawsuit." If it's to stifle speech or participation in government, then the anti-SLAPP law may apply. So Kittos may actually end up in trouble himself for filing this lawsuit. Notably, if the Trump campaign argues that this is a SLAPP suit and it wins, Kittos himself may be responsible for Trump's legal fees.

In other words, while I can understand why Kittos may have filed this lawsuit, it seems like someone may have given him some bad advice, and it may cost him.

Of course, he may be hoping that the Trump campaign just pays him off to go away. After all, the lawsuit mentions another copyright lawsuit filed against the campaign earlier this year, over a bald eagle photo -- and in that one, the Trump campaign settled the case, though no details were given on how it was settled.

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]]>can-i-introduce-you-to-fair-use?https://www.techdirt.com/comment_rss.php?sid=20161019/17420635841Wed, 19 Oct 2016 17:15:29 PDTDocuments Show Chicago PD Secretly Using Forfeiture Funds To Buy Surveillance EquipmentTim Cushinghttps://www.techdirt.com/articles/20161008/12004935747/documents-show-chicago-pd-secretly-using-forfeiture-funds-to-buy-surveillance-equipment.shtml
https://www.techdirt.com/articles/20161008/12004935747/documents-show-chicago-pd-secretly-using-forfeiture-funds-to-buy-surveillance-equipment.shtml
The Chicago Reader has put together a massive, must-read investigation into the Chicago Police Department's secret budget. The Chicago PD has -- for years now -- used the spoils of its asset forfeiture program to obtain surveillance equipment like Stingrays. This discretionary spending is done off the city's books, allowing the CPD to avoid anything that might prevent it from acquiring surveillance tech -- like meddling city legislators… or the public itself.

Since 2009, the year CPD began keeping electronic records of its forfeiture accounts, the department has brought in nearly $72 million in cash and assets through civil forfeiture, keeping nearly $47 million for itself and sending on almost $18 million to the Cook County state's attorney's office and almost $7.2 million to the Illinois State Police, according to our analysis of CPD records.

The Chicago Police Department doesn't disclose its forfeiture income or expenditures to the public, and doesn't account for it in its official budget. Instead, CPD's Bureau of Organized Crime, the division tasked with drug- and gang-related investigations, oversees the forfeiture fund in what amounts to a secret budget—an off-the-books stream of income used to supplement the bureau's public budget.

The Reader found that CPD uses civil forfeiture funds to finance many of the day-to-day operations of its narcotics unit and to secretly purchase controversial surveillance equipment without public scrutiny or City Council oversight.

It sounds like a lot of money -- $72 million in civil forfeiture funds -- and it is. But it's not like this money comes from a few large busts that have seriously affected the city's drug trade. That may be the rationale for the PD's convictionless seizing of property and cash (just like "terrorism" is often cited when acquiring surveillance tech ultimately destined for plain vanilla law enforcement use). But in reality, the forfeiture's rarely do anything more than financially cripple a large number of individuals who have little to anything to do with drug trafficking. The Chicago Reader reports that the median seizure in Illinois is only $530 -- hardly an amount one associates with criminal empires. In fact, the normal cash seizure probably sounds more like the following than a breathtaking dismantling of a local drug-running crew.

Ellie Mae Swansey, a 72-year-old retiree living on a fixed income, had her 2001 PT Cruiser seized two years ago when Chicago police arrested her son for drug manufacturing. The costs of simply beginning the long, circuitous, extremely-frustrating battle to reclaim her vehicle were prohibitive.

In order to have a chance at getting their property returned, claimants must put down a bond toward their asset when first submitting the official paperwork. This means that Swansey had to pay $140 (10 percent of her car's value) just to start the process. Then, to appear in court, she had to pay an additional $177 fee.

To Swansey, who lives on a $655-per-month social security check, these costs are substantial. Successful claimants will have 90 percent of their bond returned; unsuccessful claimants get nothing back.

The extensive investigation, compiled from dozens of FOIA request (more on than in a bit), notes that 90% of the seized funds spent by the CPD went to expected, above-board expenses: vehicles, cellphones, etc. But the rest of it went other places, obscured by redactions and withheld documents. Payments to cellphone forensics companies like CellBrite were uncovered, as were purchases of a license plate reader installed near the CPD's infamous Homan Square detention centerblack site, and $417,000-worth of cell tower spoofers.

The Chicago PD will continue to roll over retirees like Swansey because the laws governing forfeiture in Illinois have completely corrupted the incentives. It's not about law enforcement or crime prevention. It's about autonomy, power, and a steady flow of spendable cash.

When a government agency is allowed to handle the forfeiture proceeds it brings in—as is the case with both CPD and the Cook County state's attorney's office—it controls both "the sword and the purse," like an army that is also its own taxing authority. This is according to Lee McGrath, legislative counsel for the Institute for Justice, which seeks to reform civil asset forfeiture laws across the country.

And for what? What has been the end result of this massive amount of supposedly drug-focused seizures and spending?

[T]he prices of many drugs have decreased and purity has increased since the [drug] war began.

On October 13, 2014, Christopher Kennedy, from CPD's Gang Investigations Division, wrote to Nicholas Roti, then chief of the department's Bureau of Organized Crime:

"Because this equipment will be used for [REDACTED] investigations in to [sic] [word missing] [I] recommend that it be paid for with both 1505 and 1505ML funds in equal amounts," he wrote.

Several requests later, Lucy Parson Lab (government transparency activists) and the Chicago Reader confirmed that these accounts were tied to asset forfeiture. Moving on from there, however, required some outside assistance. The Reader was going to be asking for a lot of documents and it would have been easy for the Chicago PD to deny such a request from a single entity as "unduly burdensome."

But several public records requesters, each using their own name? Not as easy.

To get over this hurdle, Lucy Parsons Labs launched a collaboration with MuckRock, a FOIA and transparency website, asking ordinary users to send FOIA requests on our behalf.

Lucy Parsons Labs drafted a sample FOIA request for users to download and submit. We also managed the responses from CPD—MuckRock's platform automatically followed up with CPD when the department was late responding to a request. Once checks came back from CPD, Lucy Parsons members collected the data in a centralized location and classified each purchase as being either part of routine police activities or as part of broader surveillance efforts. Eleven of our 13 community requesters used the MuckRock FOIA platform to submit and manage their requests.

This is how you beat a system predisposed to telling you "no." A "burdensome" request split 20 ways is no longer a burden. Sure, the Chicago PD might have experienced a bit more of a crunch fulfilling these, but it couldn't use the law to deny releasing documents it almost certainly would have preferred to keep under wraps.

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]]>no-accountability,-no-oversighthttps://www.techdirt.com/comment_rss.php?sid=20161008/12004935747Thu, 28 Jul 2016 23:48:08 PDTNew Law In Illinois Restricts Stingray Use, Requires Court Orders For DeploymentTim Cushinghttps://www.techdirt.com/articles/20160727/06472235085/new-law-illinois-restricts-stingray-use-requires-court-orders-deployment.shtml
https://www.techdirt.com/articles/20160727/06472235085/new-law-illinois-restricts-stingray-use-requires-court-orders-deployment.shtml
Roughly eight years after information about law enforcement use of Stingray devices began slowly making its way into the public sphere, positive changes are being made. While the government has often argued it can be the "Third Party" in "Third Party Doctrine" by inserting itself warrantlessly between people's cell phones and their carriers' towers, its assertions are being met with increased judicial skepticism.

Two judges -- one state, one federal -- have reached the same conclusion in recent months: using a cell tower spoofer to locate suspects by dragging information out of their phones is a search under the Fourth Amendment. Warrants are required.

A few state legislatures have gotten into the act as well, proposing laws that create a warrant requirement for Stingray deployment. Illinois is the latest to do so (and the law actually passed), creating a new set of guidelines for law enforcement Stingray device use, including limits on data retention. It doesn't go quite so far as to mandate warrant acquisition, but it does force law enforcement to specify the equipment used in their applications, which also serves to create a paper trail that can be examined by defendants and members of the public.

Provides that an application for a court order to use a cell site simulator device, including an emergency application under the Freedom From Location Surveillance Act, must include a description of the nature and capabilities of the cell site simulator device to be used and the manner and method of its deployment, including whether the cell site simulator device will obtain data from non-target communications devices. Provides that an application for a court order to use a cell site simulator device, including an emergency application under the Freedom From Location Surveillance Act, must also include a description of the procedures that will be followed to protect the privacy of non-targets of the investigation, including the immediate deletion of data obtained from non-target communications devices.

The presentation of probable cause basically makes it a warrant requirement, even if the word "warrant" appears nowhere in the legislation.

The other positive here is that very strict controls on the use and retention of non-hit data are being instituted as well.

Provides that if the cell site simulator device is used to locate or track a known communications device, all non-target data must be deleted as soon as reasonably practicable, but no later than once every 24 hours. Provides that if the cell site simulator device is used to identify an unknown communications device, all non-target data must be deleted as soon as reasonably practicable, but no later than within 72 hours of the time that the unknown communications device is identified, absent a court order preserving the non-target data and directing that it be filed under seal with the court.

An additional nice touch is that requests and orders aren't considered "sealed" by default and that any seal request granted only lasts six months, and extension requests must be accompanied by a certification indicating the documents are part of an ongoing investigation or a "showing of exceptional circumstances." The last one is a little worrying as it could be used to maintain seals indefinitely if the court is inclined to believe law enforcement claims about "exposing law enforcement means/methods."

The Illinois State Police has taken a neutral position on the law and the Chicago Police Department did not take a position.

Expect this trend to continue. More courts and legislators are going to realize that tracking a person's location by forcing their cell phone to connect with law enforcement technology is in no way analogous to gathering phone records with a pen register order or subpoenaing historical cell site data from third-party carriers.

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]]>the-warrant-that-dare-not-speak-its-namehttps://www.techdirt.com/comment_rss.php?sid=20160727/06472235085Wed, 6 Jul 2016 12:54:23 PDTPolice Claim They Arrested Man Who Burnt American Flag Because Of Threats He ReceivedTimothy Geignerhttps://www.techdirt.com/articles/20160706/07235334901/police-claim-they-arrested-man-who-burnt-american-flag-because-threats-he-received.shtml
https://www.techdirt.com/articles/20160706/07235334901/police-claim-they-arrested-man-who-burnt-american-flag-because-threats-he-received.shtml
Hey, guys, how was your 4th of July? Good? Lots of hot dogs and brats? Nobody firecrackered their nuts off or anything? Maybe just drank a little too much? Whatever your 4th of July experience, it sure wasn't as bad as this guy's.

Meet Bryton Mellott. Bryton's just a guy from Urbana, IL. A guy with a Facebook page that he uses to share stuff with friends, post hilarious memes, and post a picture of himself burning the American flag on the 4th of July, the anniversary of when President Washington personally haymaker-punched the King of England right in the face (I think), thereby setting all some Americans free of our British overseers.

As you can imagine, lots of people didn't like Bryton's picture. Some called the police about it for reasons we will get into in a moment. Others threatened him with violence and death. Still others threatened him with violence and death at his place of work. A few meager folks stuck up for him. You know, Facebook.

And at the end of the day, Bryton was arrested by Urbana police. Per the department's own press release.

On the morning of 7/4/16, the Urbana police department began receiving calls concerning a Facebook post that portrayed Bryton Mellott, a citizen of Urbana, burning an American flag. The images and narrative in the post caused some to call and request police action against Mellott and others to call and express concern for the safety of Mellott and those around him. Officers viewed the post and saw that there were a rapidly growing number of social media responses. Many threatened violence against Mellott and his place of employment, which fielded a large volume of calls regarding the post.

Given the volume of responses and specificity of threat against his place of employment (a location where an act of violence would likely cause harm to others), prompted police involvement in this case. After investigating the incident and speaking to both Mellott and his employer [Walmart -EV], Mellott was placed under arrest for flag desecration. The police report lists Mellott as an offender of both flag desecration and disorderly conduct as well as a victim of disorderly conduct. After consulting with a member of the States Attorney’s Office, Mellott was released from custody and given a notice to appear in court. Mellott’s release was due to questions about the constitutionality of the 2013 Illinois flag desecration law.

The Urbana Police department recognizes that this is a case where the right of free speech comes into conflict with the safety of uninvolved citizens. The actions taken in this case have been to try to assure the safety of the public and Mr. Mellott. The Urbana Police urge the public to express themselves in a peaceful way and to not retaliate against unpopular speech.

There is just so much wrong in that press release that it's hard to know where to begin. Let's start with the flag desecration bit first. The end of the PR piece says that Bryton was released because there are questions about the constitutionality of Illinois' flag desecration law, which makes it illegal to burn the American flag. Yet there are zero questions about it, actually. The Supreme Court was quite clear in rulings in the 80s and 90s that laws like the one in Illinois, which was enacted in 2013, are flat out unconstitutional. The burning of the flag can make you mad and sick, but it's speech, and it's worth protecting. That additional bit about consulting with the States Attorney's office wasn't so much a consultation as it was that office telling police to let him go and then refusing to charge him because they couldn't.

The State’s Attorney’s Office is declining to file charges against (Bryton) Mellott as the act of burning a flag is protected free speech according to the US Supreme Court decision, Texas v. Johnson, 491 US 397 (1989).

Now, to the disorderly conduct portion of this. That charge as well is completely nonsensical. If the burning of the flag is free and valid speech, the uproar that occurred on social media, including the threats of violence, can in no way be made the fault of the free and legal speech. Bryton didn't make any threats. He didn't act disorderly in any way. He was purely a victim here.

And the court has made clear since 1949 that the government can’t punish someone for “disorderly conduct” simply because his speech offends people and leads some of them to threaten violent retaliation. The police must protect the speaker (even though such protection understandably involves cost and risk for the police), rather than criminally punish him for his speech, except perhaps in some extremely rare cases that involve brewing riots on the street — a narrow category into which this speech doesn’t fall.

Which brings us to the police's use of those threats as part of its excuse for involvement and the eventual arrest of Bryton to begin with. Keep in mind, whatever you think of it, that what Bryton did was legal. For others to threaten him and his place of work with violence, and to then use those threats to arrest Bryton is one of the most blatant examples of victim-blaming I can think of. The summary here should make this clear: a man, on the 4th of July, engaged in free speech, had threats made against him, and then those threats were the excuse used to arrest that man. Nowhere does the department's comments state that any other arrests have been made, such as the arrests of those who actually committed a real crime by making violent threats.

Being an advocate for free speech means protecting speech you don't like. I can't think of a more pure example of the opposite of that than this story.

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]]>huh?https://www.techdirt.com/comment_rss.php?sid=20160706/07235334901Fri, 1 Jul 2016 11:51:50 PDTIllinois Court Says State's Cyberstalking Law Is UnconstitutionalTim Cushinghttps://www.techdirt.com/articles/20160629/08271934861/illinois-court-says-states-cyberstalking-law-is-unconstitutional.shtml
https://www.techdirt.com/articles/20160629/08271934861/illinois-court-says-states-cyberstalking-law-is-unconstitutional.shtml
One of several problems with hastily-enacted laws meant to deal with advances in technology is that they often skip a step or several when being written. In many cases, the step skipped is an important one: the consideration of intent. By crafting laws that cater to subjective views of a situation -- whether it's meant to address cyberbullying or other forms of online harassment -- the laws blow past, sometimes intentionally, the requirement that there be malicious intent behind the targeted actions.

This has led to courts striking down newly-enacted laws as unconstitutional because they have skipped this step. Without this requirement in place, the laws curb free speech by enacting new limits on First Amendment expression based almost solely on subjective reading of the allegedly "criminal" content.

The Illinois Appeals Court is the latest to find a cyberstalking/harassment law invalid. The problem here is, again, the lack of a mens rea requirement. (h/t Orin Kerr)

The stalking case that triggered this review [PDF] deals with a former intern at a Christian radio station who apparently couldn't take "no" for an answer, or just genuinely had no idea how to obtain a definitive answer on his current job status. It all depends on who you ask. But as the law was written, the only person who needed to be asked was the complainant.

Defendant was charged by indictment with two counts of stalking and two counts of cyberstalking. In particular, the indictments collectively alleged that defendant: (1) called Sonya Blakey on the telephone; (2) sent her emails; (3) stood outside of her place of business; (4) entered her place of business; and (5) made multiple posts on his Facebook page threatening Blakey’s coworkers and expressing his desire to engage in sexual acts with Blakey. The indictments further alleged that defendant “knew or should have known” that his conduct “would cause a reasonable person to suffer emotional distress” and “fear for her safety.”

The indictment makes the defendant [Walter Relerford] sound more than a bit dangerous. The actual events that triggered this prosecution, however, are not nearly as evil-sounding. Blakey testified that multiple emails were sent not just to her, but other employees at the station -- all of them inquiring about the possibility of working there again after being turned down for an open intern position. She also testified that the incident in which the defendant "stood outside her place of business" involved nothing more than him waving up at her from ground level -- at a complex where multiple businesses, including several restaurants, were located.

The defendant's unexpected visit to the business was just that. Blakey may have subjectively experienced shock or fear, but the defendant left peaceably when escorted from the building and made no movements or statements suggesting he posed any threat to Blakey.

The Facebook posts made by the defendant were a bit more disturbing, containing thinly-veiled threats related to Blakey and the station's refusal to give him a job. There were also comments of a sexual nature made. Also included were other things entirely unrelated to anything -- like a group of "Chinese people" talking about "killing everyone at the station" and the insistence that "the entire Michigan State football team from 1993" be immediately "buried" if he did not have "Sonya [Blakey's] vagina in his mouth" by the end of the week.

These posts were definitely more disturbing than anything Relerford had done prior. But they weren't tagged with Sonya Blakey's name (making them visible to her) and no attempt was made by Relerford to ensure Blakey saw them. Instead, a friend of Blakey's saw the posts and emailed them to her.

Blakey admitted during testimony that Relerford had never once threatened her directly. Instead, everything was based on how she felt about the interactions. And the way the law is crafted allows a single subjective viewpoint to steer prosecution… which is exactly what the court finds unconstitutional about the law.

The laws (both the regular stalking and cyberstalking version) had survived challenges before. But under the Supreme Court's Elonis decision, they no longer withstand Constitutional scrutiny.

As noted above, defendant was sentenced for violating subsection (a)(2) of the general stalking statute. That section criminalizes a wide range of conduct, including communicating to or about a person. But, like the statute at issue in Elonis, “communicating something is not what makes *** conduct ‘wrongful’ ” under subsection (a)(2). (Emphasis in original.) Id. at ___, 135 S. Ct. at 2011. Instead, an individual’s conduct is criminal under section (a)(2) if, and only if, the defendant “knows or should know” that it would cause “reasonable person” to “suffer *** emotional distress.” 720 ILCS 5/12-7.3(a)(2) (West 2012). Subsection (a)(2) contains no requirement that the individual actually intend to inflict emotional suffering on a person. Thus, as currently drafted, subsection (a)(2) bypasses “ ‘the conventional requirement for criminal conduct–awareness of some wrongdoing’ ” in favor of a reasonable person standard of criminality.

Which leads to this determination about the state's older stalking law…

Accordingly, we hold that subsection (a)(2) of the general stalking statute, of which defendant was convicted and sentenced, lacks a mens rea requirement and is therefore facially unconstitutional under the due process clause of the fourteenth amendment.

As well as its cyber version:

Subsections (a)(1) and (a)(2) of the cyberstalking statute are virtually identical to subsections (a)(1) and (a)(2) of the general stalking statute. The principal difference is that the cyberstalking statute specifies that the defendant’s course of conduct involved electronic communications. It necessarily follows then, that subsections (a)(1) and (a)(2) of the cyberstalking statute, which also lack a mens rea requirement, are facially unconstitutional under the due process clause of the fourteenth amendment for the same reason that subsections (a)(1) and (a)(2) of the general stalking statute are unconstitutional.

The court doesn't instruct the legislature to fix the state's stalking laws, but it obviously can't leave the statutes the way they are and hope to prosecute anybody under them.

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]]>also,-its-analogstalking-lawhttps://www.techdirt.com/comment_rss.php?sid=20160629/08271934861Mon, 25 Apr 2016 14:04:27 PDTIllinois Police Department Pulls Plug On Body Cameras Because Accountability Is 'A Bit Burdensome'Tim Cushinghttps://www.techdirt.com/articles/20160415/06324134189/illinois-police-department-pulls-plug-body-cameras-because-accountability-is-bit-burdensome.shtml
https://www.techdirt.com/articles/20160415/06324134189/illinois-police-department-pulls-plug-body-cameras-because-accountability-is-bit-burdensome.shtml
Police body cameras aren't the cure-all for bad policing. However, they are an important addition to any force, providing not only a means for accountability (albeit an imperfect one) but also documentation of day-to-day police work. They can help weed out those who shouldn't be cops as well as protect officers from bogus complaints.

It's not enough to just have the cameras, though. Effort must be made to keep them in working order (and to prevent intentional damage/disabling). The footage must also be preserved and provided to the public when requested. This does mean there's additional workload and expenses to be considered, but the potential benefits of increased documentation should outweigh the drawbacks.

Minooka Police Chief Justin Meyer said Friday the issue was not with the functionality of the cameras, but that it became a burden for staff to fill the many requests for video footage.

How much of a burden?

"I was happy [with the body cameras]," Meyer said. "It just became a bit burdensome for our administrative staff."

That's all it takes to let cops off the accountability hook: "a bit" of a burden. King Camera has been overthrown and the public's access to information is first against the wall.

Chief Meyer might want to hire a spokesperson because he's not exactly doing a great job explaining how burdensome the cameras were.

Meyer described a hypothetical example of the extra work it created for department staff.

"You could have four officers on a call for a domestic incident," Meyer said. "If they are on scene for an hour -- whether there's an arrest or not -- that's four hours of video that has to be uploaded."

Meyer could possibly be referring to redaction efforts, which could be time-consuming. He couldn't possibly be referring to the "burden" of uploading film because that's, well, non-existent.

The cameras could record up to nine hours of continuous footage with 16 GB of storage. They were plugged into a USB port at the department after a shift to collect the footage and recharge the battery.

Because the state doesn't mandate the use of body cameras, the Minooka PD -- which was the first in its county to deploy the technology -- may be the leading edge of a new wave of abandonment, both of body cameras and the accountability that goes with them. All because of an increased workload deemed by the abandoning agency as "a bit burdensome." When the going gets tough, the tough say, "Fuck it," apparently.

Policing is adversity defined. I can't muster up much sympathy for a law enforcement agency that calls it quits the moment it faces a logistical hurdle. To me, this abandonment says the department's heart was never in it. Meyer may say he "liked" the cameras, but he sure didn't put up much of a fight when someone in the office complained about the extra work. This is an agency that was looking for an excuse to ditch the cameras and took the first "offer" that came along: a bit of a burden.

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]]>unconditional-surrender-to-administrative-complaintshttps://www.techdirt.com/comment_rss.php?sid=20160415/06324134189Fri, 21 Aug 2015 10:38:43 PDTIllinois Attorney Discipline Board Finally Moves Against Prenda Mastermind John SteeleMike Masnickhttps://www.techdirt.com/articles/20150820/18091432022/illinois-attorney-discipline-board-finally-moves-against-prenda-mastermind-john-steele.shtml
https://www.techdirt.com/articles/20150820/18091432022/illinois-attorney-discipline-board-finally-moves-against-prenda-mastermind-john-steele.shtmlshaking down small businesses by abusing the ADA, while still getting regularly smacked around in court, it seemed amazing that they were still practicing law. After all, it was in May of 2013 that Judge Otis Wright referred Team Prenda to their associated state bars (along with the feds and the IRS). And nothing seemed to be happening -- though, as Ken White noted, long ago, the wheels of justice "turn slowly, but make no mistake, the wheels turn."

And it appears they've finally come around on John Steele. The Illinois Attorney Registration and Disciplinary Commission has just
filed a humdinger of a complaint against John Steele. It's worth a read, but we'll go through some highlights below. Let's just say that the IARDC may have taken a long time to get this done, but there appears to be a good reason for that. Pretty much everything is in there -- and it must have taken quite an effort to pull it all together. It goes through the history, with Hansmeier and Steele starting a copyright trolling business, and then pretending to hand it off to Paul Duffy* but still actually running the copyright trolling business they pretended they'd left behind.

There are seven counts against Steele, and if you've been following the Prenda saga, none of them will surprise you. The first count is for "Dishonest Conduct and Fraud on the Court," involving everything from Alan Cooper's fraudulent signature in the AF Holdings and Ingenuity 13 cases, to pretending those cases were not connected. The complaint goes through a rather detailed blow-by-blow account of all of Steele and Hansmeier's questionable activities. And it concludes that all of the following were misconduct by Steele:

bringing a proceeding without a basis in law and fact for doing so that is not frivolous, by conduct including filing lawsuits without supporting facts, under the names of fictional entities, and misusing the identity of Alan Cooper, for purposes of exacting settlements, in violation of Rule 3.1 of the Illinois Rules of Professional Conduct;

knowingly disobeying an obligation under the rules of a tribunal by conduct including failing to abide by Judge Wright’s order quashing discovery, and failing to appear as ordered at the OSC hearing, in violation of Rule 3.4(c) of the Illinois Rules of Professional Conduct;

in a pretrial procedure making a frivolous discovery request(s), by conduct including filing the motions for early discovery on behalf of shell corporations in violation of Rule 3.4(d) of the Illinois Rules of Professional Conduct;

in representing a client, using means that have no substantial purpose other than to embarrass or burden a third person, or using methods of obtaining evidence that violate the legal rights of such a person, by conduct including sending the settlement shakedown letters in violation of Rule 4.4 of the Illinois Rules of Professional Conduct;

conduct involving dishonesty, fraud, deceit, or misrepresentation, by conduct including filing lawsuits without supporting facts, under the names of fictional entities, misusing the identity of Alan Cooper as a principal of Ingenuity 13 and AF holdings, for purposes of exacting settlements, in violation of Rule 8.4(c); and

conduct that is prejudicial to the administration of justice, by conduct including failing to respond to reasonable inquiries posed by the tribunal regarding lawsuits Respondents initiated, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct.

So, yeah. And that's just the first count. I love the fact that the ARDC flat out calls them "settlement shakedown letters." No beating around the bush here.

The second count involves the lawsuit that Alan Cooper filed against John Steele and Prenda for forging his signature and getting Cooper wrapped up in Steele's shakedown business. It turns out that Steele "settled" the case by paying Cooper $35,000. However, he, nor Duffy, ever wrapped up the fact that the lawsuit was also against Prenda Law. Apparently just last month, the court found that Prenda was in default and should pay Cooper another $5,000 for humiliation and $250,000 for punitive damages. Steele appears to have ignored basically all of that. Oops.

Count number three involves Guava v. Spencer Merkel case, in which Team Prenda was once again smacked around and ordered to pay a pretty big set of attorneys' fees. If you don't recall, this particular case had some "special" features. It started with a fairly sketchy CFAA claim rather than a copyright claim (this was tap dancing, in which Steele pretended that people had "hacked" into the computer to download the videos that he himself had apparently put up). There were also claims that team Prenda would find the opposing lawyer who was actually working with them, leading one judge to flat out ask if the two sides "were in bed together." And that story was given a lot more credence when Spencer Merkel admitted that he'd agreed to "take a dive" for Team Prenda in exchange for getting off easy in Prenda's accusations against him. After running through the detailed history there, it lists the same basic "misconduct" list from the first charge, but for the Guava case.

Count number four is about the Lightspeed v. Anthony Smith case (the one where Team Prenda was just last week ordered to pay another $94,000). Once again, the IARDC walks through all the details... and charts out the misconduct list again.

Count number five is still about the same Lightspeed case, but this time related to "obstructing discovery and dishonest conduct." As you may recall, Steele directly reached out to falsely tell parties that subpoenas had been quashed, even though they had not been. These were subpoenas looking into whether or not Steele was lying in pleading poverty to the court to try to get out of paying yet another ruling against him. Or, hell, let's just let the IARDC tell it:

On February 19, 2014, Judge Herndon entered an order denying Respondent’s motion to quash the subpoenas Smith issued in case number 12-CV-00889. Respondent learned of the order shortly after it was entered.

On March 3, 2014, two weeks after Judge Herndon had denied Respondent’s motion to quash, at Respondent’s direction Paul Duffy sent a file-stamped copy of the motion to quash to JP Morgan.

Paul Duffy’s actions, in sending the file-stamped motion to quash to JP Morgan after it had already been denied, were intended to mislead JP Morgan officials into believing that they did not have to respond to Smith’s subpoena because it was subject to a motion to quash.

As of April 16, 2014, there was no stay in place in 12-CV-00889. On that date, Respondent Steele sent an e-mail to officials at Sabadell informing them that a stay was in place in case number 12-CV-00889. Respondent Steele’s statement was false and Respondent Steele knew it was false because he knew that a stay was not in place when he made that statement in his e-mail, and his statement that a stay was in place was intended to mislead Sabadell officials into thinking that they did not have to comply with the subpoena Sabadell had received.

The misconduct here included:

making a false statement of fact to a tribunal, by conduct including claiming an inability to pay the sanction awards imposed against them, in violation of Rule 3.3(a)(1) of the Illinois Rules of Professional Conduct;

knowingly disobeying an obligation under the rules of a tribunal by conduct including failing to comply with reasonable discovery requests, in violation of Rule 3.4(c) of the Illinois Rules of Professional Conduct;

conduct involving dishonesty, fraud, deceit, or misrepresentation, by conduct including obstructing discovery and misleading the court in an effort to avoid paying sanction awards imposed against them, in violation of Rule 8.4(c); and

conduct that is prejudicial to the administration of justice, by conduct including obstructing discovery and misleading the court in an effort to avoid paying sanction awards imposed against them, in violation of Rule 8.4(d) of the Illinois Rules of Professional Conduct.

Count six is about more of the same in another Guava case -- one of the ones involving what appeared to be another Alan Cooper situation with the ever changing person "Allan Mooney"/"Alan Mooney"/"Alan Mony." This was in one of the St. Clair County CFAA cases, that sought to hide that it was really a copyright case. Again, the IARDC finds all sorts of misconduct.

Finally, the seventh count involves that time when Steele (and Duffy and Prenda) sued Alan Cooper and his lawyer, Paul Godfread, (and a bunch of internet commenters) for defamation. As you may remember, Steele quickly dismissed his own direct lawsuit against them (perhaps once he realized that he had not followed the proper procedures in Florida for filing a defamation case), though the case technically filed by Prenda lived on -- and was finally tossed out a few months ago.

But, as you may recall, there were some shenanigans there as well, where the original Prenda suit was filed in Illinois state court, which Cooper and Godfread removed to federal court, correctly noting that the plaintiffs were in Illinois and they were in Minnesota (which creates diversity, which allows the case to be removed). Except, Team Prenda then lied to the court, said the original complaint had not been served, and then filed an amended complaint that randomly added Paul Hansmeier's Minnesota law firm, so that there would no longer be diversity (diversity is only if there is no overlap in states between plaintiffs and defendants). Not only was this a pretty blatant (and bullshit -- since none of the already questionable statements that the suit claimed were defamatory about Hansmeier's law firm) attempt to try to get around having the case removed to federal court, it also involved lying to the court to file that amended complaint. Then there were more games, where Duffy tried to get the case sent back to the state court again, playing some more tricky games (this post is getting long enough so you can read the full story to get the details).

And, yup, the IARDC was paying attention to all of that too.

In the end, it's difficult to see how Steele gets out of this in a manner that will ever let him practice law again. There's a lot in there. The IARDC filing is pretty damn thorough, though it does miss a few of Steele's other adventures -- such as his infamous comedy routine in a Florida court where he was not allowed to practice law (but appeared to be doing so anyway). Also missing: the evidence suggesting that Steele himself was uploading all the videos he'd later claim were infringing. But, you know, there's plenty in there already.

One wonders if something similar will show up for Hansmeier in Minnesota at some time soon. And if the federal investigations will eventually become public as well...

* As a side note, Duffy, the third wheel with Hansmeier and Steele, who was the only official partner of Prenda Law, passed away last week, which explains why he's discussed throughout, but is not listed as a respondent himself.

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]]>going-downhttps://www.techdirt.com/comment_rss.php?sid=20150820/18091432022Thu, 2 Apr 2015 08:16:00 PDTPolice Chief Unable To Simply Do Nothing Over Reported Teen Sexting, Brings Child Porn Charges Against Four MinorsTim Cushinghttps://www.techdirt.com/articles/20150331/14510830506/police-chief-unable-to-simply-do-nothing-over-reported-teen-sexting-brings-child-porn-charges-against-four-minors.shtml
https://www.techdirt.com/articles/20150331/14510830506/police-chief-unable-to-simply-do-nothing-over-reported-teen-sexting-brings-child-porn-charges-against-four-minors.shtml
Good, old-fashioned "sexting" has netted more teens some child pornography charges. Despite the teens involved claiming the photographed behavior was consensual, Joliet's (IL) police chief still believes the only way to address a situation he and the laws he enforces aren't built to handle, is to handle it as poorly as possible. (via Ars Technica)

“It’s a criminal offense, first of all, to post that type of material online, especially for underage,” Benton said.

For underage? Or by underage? (To use Benton's clumsy phrasing…) Because while everything recorded involved teens between the ages of 14-16, it was also distributed by these same teens. What happened here was only technically "child porn" and it involved no exploitation.

Still, Benton seems to feel the only way to prevent teens from doing something regrettable that might affect them "for years to come" is to treat this all-too-common (and apparently very normal) situation in a way that ensures any teen involved in sexting will be saddled with criminal charges that will affect them for years to come.

“The child pornography offense that was charged is in place for a reason, because we don’t want to accept that type of behavior as a society,” Benton said. “It’s making a strong statement, and I think it’s important to do so, to send a message to others that kids shouldn’t be involved in this type of behavior, and hopefully this will serve as a deterrent.”

No, it's in place to prevent the nonconsensual sexual exploitation of children. It is not in place to charge teens for consensual, normal behavior.

But, whatever. Now these teens who participated in activity that isn't explicitly illegal have been hit with charges for something that is very definitely illegal and that will likely affect them adversely until they hit the age of 21, if not for longer. It seems that if Chief Benton can't make the actual sexual acts illegal, he'll do all he can to criminalize depictions of the actual events, ignoring the logical dissonance of charging children for creating child porn.

(5) With respect to a property interest in existence at the time the illegal conduct giving rise to the forfeiture took place, he or she either:

(A) did not know of the conduct giving rise to the forfeiture; or

(B) upon learning of the conduct giving rise to the forfeiture, did all that reasonably could be expected under the circumstances to terminate that use of the property.

[...]

(b) For purposes of paragraph (5) of subsection (a), ways in which a person may show that he or she did all that reasonably could be expected include demonstrating that he or she, to the extent permitted by law, did either of the following:

(1) Gave timely notice to an appropriate law enforcement agency of information that led the person to know that the conduct giving rise to a forfeiture would occur or had occurred.

(2) In a timely fashion revoked or made a good faith attempt to revoke permission for those engaging in the conduct to use the property or took reasonable actions in consultation with a law enforcement agency to discourage or prevent the illegal use of the property.

If the local PD is creative enough to charge teenagers for producing and starring in their own child porn, it might be willing to seize the property "involved" in this consensual activity.

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]]>the-law-is-the-law,-dammit!https://www.techdirt.com/comment_rss.php?sid=20150331/14510830506Mon, 5 Jan 2015 13:27:00 PSTJohn Steele Looking To Join Former Prenda Lawyer Paul Hansmeier In ADA Lawsuit Shakedown BusinessTim Cushinghttps://www.techdirt.com/articles/20150104/12002529596/john-steele-looking-to-join-former-prenda-lawyer-paul-hansmeier-ada-lawsuit-shakedown-business.shtml
https://www.techdirt.com/articles/20150104/12002529596/john-steele-looking-to-join-former-prenda-lawyer-paul-hansmeier-ada-lawsuit-shakedown-business.shtmlclass action lawsuits predicated on supposed ADA (Americans with Disabilities Act) violations. Hansmeier isn't suddenly a do-gooding social warrior seeking equitable treatment for disabled Americans. He's just shifted the focus of his modus operandi. Hansmeier sues and sues and sues, offering out-of-court settlements to the defendants. This is money Hansmeier shouldn't theoretically be able to demand, but he's found a loophole that works for him.

In most cases, federal and state laws governing disability access don’t provide punitive relief. They can only be used to get property owners to correct shortcomings and to recover the plaintiff’s reasonable legal expenses. However, Hansmeier has been making claims under a Minnesota law that the property owners are committing a bias offense, which is a misdemeanor. In correspondence seeking a settlement with Peterson, he wrote that the law exposes defendants to a fine of $500 per incident, as well as punitive damages.

Using this, Hansmeier has demanded anywhere from $2,500 to $15,000 from the businesses he's sued. The end result has been some companies paying up rather than fighting back, while others have decided to cease doing business entirely. The 84-year-old owner of an antique shop targeted by a Hansmeier suit has closed her business as a result of his litigious actions. At the point it shut down, it was making around "$50 a day." Now, the business is completely inaccessible -- both to the disabled and non-disabled alike.

Like copyright trolling, the hit rate may be low but the margin is comfortably high. Only a small percentage of those sued need to pay up to ensure profitability. Hansmeier has managed to extract a few settlements at this point, which will only encourage him to continue exploiting a good law for negative ends. The biggest hurdle he faces now is his own terrible reputation.

[T]he chief judge of Hennepin County District Court has ordered that a half dozen of Hansmeier’s disability cases be reassigned to a single judge to ensure that they’re handled uniformly.

The Minnesota attorney general’s office recently referred complaints about Hansmeier to the board that disciplines attorneys for ethical violations, even as he continues to press for cash settlements with small business owners.

The lure of easy money has now attracted another one of Prenda's principals: John Steele.

DarthSkeptic tweeted outtwo bits of information that point to Steele moving from one shakedown business to another.

On December 30, 2014, John Steele incorporated the "Accessibility Law Group, LLC" in the state of Illinois (screenshot below as the Illinois Secretary of State's business search provides no permalink to search results). The address of the "business" traces back to virtual offices offered by DaVinci Virtual Office Solutions, which would suggest Steele plans to pursue businesses for ADA violations without actually having to set up (physical) shop in Illinois.

Given Steele's past, one should probably expect a flurry of filings in the near future, pursuing low-risk targets with low-to-medium settlement offers, much like Hansmeier's "work" in Minnesota. The paperwork can be filed from anywhere with work farmed out to local lawyers willing to do the groundwork in exchange for a percentage of collected settlements.

Steele's new hunting grounds favor his chosen business model. Time Magazine pointed out in a 2008 article about ADA lawsuit abuse that Illinois (along with California, Hawaii and Florida) is one of the easiest states to file (and collect on) frivolous lawsuits. The American Tort Reform Foundation has also called out Illinois' flawed legal system in the past, naming it one of the nation's foremost "judicial hellholes." One of the issues specifically listed is the willingness of the state to entertain lawsuits filed by non-residents -- something that works in Steele's favor if he doesn't actually reside in Illinois. Prenda Law was nominally a Chicago operation, but also included work done from Florida and (see Hansmeier) Minnesota.

Once a troll, always a troll, it seems. Prenda Law may no longer be an entity, but the lawyers behind it are back in the settlement business. Sure, ADA violations may be more publicly palatable than chasing porn downloaders, but underneath it all, it's still the same shady business that has the potential to wreak the same sort of financial havoc on its victims.

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]]>once-a-parasite...https://www.techdirt.com/comment_rss.php?sid=20150104/12002529596Wed, 10 Dec 2014 12:40:00 PSTIllinois Legislature Passes Recording Ban To Protect Public Servants - Not The PublicTim Cushinghttps://www.techdirt.com/articles/20141209/08055029368/illinois-legislature-passes-recording-ban-to-protect-public-servants-not-public.shtml
https://www.techdirt.com/articles/20141209/08055029368/illinois-legislature-passes-recording-ban-to-protect-public-servants-not-public.shtmlbeing abused by cops to prosecute citizens who recorded them. This strayed pretty far from the spirit of the law (you know, actual eavesdropping). Courts, including federal courts, declared this interpretation of the law unconstitutional in various decisions and in March of this year, the state Supreme Court overturned the law completely.

Legislators have now pushed through a new version of the eavesdropping/wiretapping law -- one hopefully more compliant with the First Amendment. But those hopes will need to be tempered. The new bill, now resting on the governor's desk, doesn't do much to prevent law enforcement and other public officials from using the law as a shield against recordings.

[I]t was introduced on Tuesday, Dec. 2, as an amendment to an existing bill on a completely different subject. The amendment removed all of the bill’s previous content and replaced it with the new ban on recording. The House passed it the following day, and the Senate passed it the day after that. So the people who would have cared most about this bill probably didn’t notice it in time to object.

Note that Illinois Policy's writers (Jacob Huebert and Bryan Jackson-Green) refer to the new bill as a "recording ban." They aren't kidding. The language leaves key stipulations open to interpretation.

Under the new bill, a citizen could rarely be sure whether recording any given conversation without permission is legal. The bill would make it a felony to surreptitiously record any “private conversation,” which it defines as any “oral communication between 2 or more persons,” where at least one person involved had a “reasonable expectation” of privacy.

As we know, public officials performing official duties aren't afforded an expectation of privacy. But what happens when an officer enters a home or business? Once out of public areas, do officials obtain an expectation of privacy? What about phone calls to and from public officials? Is the fact that it occurs on a "private" line enough to make any recordings a criminal offense? The bill simply doesn't say, apparently leaving this important distinction up to various courts to decide.

The bill further acts as deterrent against recording public officials by handing out inequitable penalties for violations.

The bill would also discourage people from recording conversations with police by making unlawfully recording a conversation with police – or an attorney general, assistant attorney general, state’s attorney, assistant state’s attorney or judge – a class 3 felony, which carries a sentence of two to four years in prison. Meanwhile, the bill makes illegal recording of a private citizen a class 4 felony, which carries a lower sentencing range of one to three years in prison.

Citizens have long known that laws work differently for the public than they do for their public servants. This legislation goes the extra distance to spell it out in black and white. According to the wording, public officials' privacy is worth more than private citizens' privacy.

Unfortunately, the legislation may pass constitutional muster because the wording can be interpreted to be protective of First Amendment activities -- even as its lack of specificity encourages interpretation to the contrary.

Compared to the last version of the Illinois eavesdropping statute, the new statute significantly expands the circumstances when police and informants may record and intercept private conversations and phone calls without all-party consent or a warrant. We know of no evidence that the prior version of the statute, which required police to seek judicial approval, was any impediment to law enforcement in these instances. We are concerned about the expanded number of cases where no judicial officer will provide a check on police.

If this bill goes through -- and there's good reason to believe it will, what with all that cherished "bipartisan support" behind it -- police officers will still be able to use the vague wording of the law in their favor. The lack of clarity invites law enforcement to take their chances on the wheel o' justice and see how the courts interpret the new statute -- a process that goes in motion long after someone's recording has been halted and charges have been filed.

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]]>the fix that maintained the status quohttps://www.techdirt.com/comment_rss.php?sid=20141209/08055029368Wed, 15 Oct 2014 11:40:15 PDTLawyer Says It's Copyright Infringement To Use Her Own Blog Posts Against Her In Disciplinary ProceedingsMike Masnickhttps://www.techdirt.com/articles/20141015/06592828835/lawyer-says-its-copyright-infringement-to-use-her-own-blog-posts-against-her-disciplinary-proceedings.shtml
https://www.techdirt.com/articles/20141015/06592828835/lawyer-says-its-copyright-infringement-to-use-her-own-blog-posts-against-her-disciplinary-proceedings.shtmlpoints our attention to yet another bizarre copyright case, Denison v. Larkin, in which lawyer Joanne Denison argued that the Illinois Attorney Registration and Disciplinary Commission (IARDC) infringed on her copyrights by using portions of her own blog as evidence against her during a disciplinary proceeding. Not surprisingly, the court soundly rejected this particular interpretation of copyright law.

Basically, Denison created a blog about what she and some others believed was "courtroom corruption" concerning a particular 90-year-old woman. Some of those involved in the story filed a disciplinary complaint against Denison, "alleging professional misconduct in making false statements on her Blog." The complaint itself included "15 paragraphs of text" from the blog. Further, she claims that the IARDC "copied over 1,000 pages of the Blog and 'then incorporated [it] into further exhibits.'" She also sued Nextpoint, a company that the IARDC apparently used to save copies of the blog. The (rather patient) court goes through a full fair use analysis, finding (rather easily) that all four of the traditional "fair use factors" weigh heavily in favor of fair use. Based on that, it finds no direct infringement -- and without any direct infringement, the claims of contributory and vicarious infringement fail as well.

Amusingly, Denison tried to argue that the "commercial use" fair use factor weighed in her favor because "the IARDC sells its decisions to companies such as Lexis Nexis and Westlaw for paid or unpaid benefits." The court rather simply points out: "This statement is unfounded."

In the end, it was an easy fair use win (and those are always handy), though this case appeared to be absurd from the start. So it's great to see the court make quick work of it without causing any trouble to fair use.

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]]>court-says-hahahahahahahhttps://www.techdirt.com/comment_rss.php?sid=20141015/06592828835Mon, 22 Sep 2014 05:52:40 PDTJudge Says Raid On Twitter User Perfectly Fine Because Officers Can Enforce Non-Existent Laws Provided They Have 'Probable Cause'Tim Cushinghttps://www.techdirt.com/articles/20140920/10371228589/judge-says-raid-twitter-user-perfectly-fine-because-officers-can-enforce-non-existent-laws-provided-they-have-probable-cause.shtml
https://www.techdirt.com/articles/20140920/10371228589/judge-says-raid-twitter-user-perfectly-fine-because-officers-can-enforce-non-existent-laws-provided-they-have-probable-cause.shtmlPeoria Mayor v. Twitter Parody fiasco, although reading the headlines attached to most of these articles tells a much different story than what's actually contained in the body. This has nothing to do with the parody account owner's (Jon Daniel) lawsuit against the city [pdf], filed with the assistance of the ACLU. (Many headlines actually lead with this, as though the filing of the lawsuit didn't actually happen over a month ago.)

The argument against the warrant itself is solid. FOIAed emails show internal discussions between the Peoria PD and the Mayor's office, one of which includes the Chief of Police himself saying there are no laws being broken.

Mayor/Manager, I reviewed this matter with Detective Feehan. He is in the process of shutting down the account as you saw from my last email. This phony Twitter account does not constitute a criminal violation in that no threats are made. I'm not sure if it would support a civil suit for defamation of character. I'm not an expert in the civil arena but my recollection is that public officials have very limited protection from defamation. I asked (Feehan) about identity theft and he advised it did not qualify because the statute requires the use of personal identifying information such as a social security number, DOB, etc., and a financial gain form (sic) the use of that information.

Shortly after the raid and the ensuing debacle, the prosecutor dropped the (admittedly) bogus charges against Daniel.

Peoria County State’s Attorney Jerry Brady decided the offender must commit false personation in person. Using that reasoning, he didn’t charge Jon Daniel, the creator of the parody account, who also lived at the house.

This is the argument being used by Elliott's legal rep. If no crime was committed -- and the statute used to secure the warrant not applicable -- then the warrant should be thrown out, along with anything discovered during the raid.

But the judge doesn't see it that way. He says the police had "probable cause," even if the probable cause was (to put it nicely) misinformed.

Keith’s ruling means police had to reasonably think they would find items related to the parody Twitter account such as phones, flash drives, computers or similar things in Elliott’s bed or closet.

This is stuff the police did find. But the officers also looked under Elliott's pillows and in his closet. Judge Keith still wants them to answer for that.

Peoria police officers will testify Oct. 8 to explain why they looked under Elliott’s pillow and in a closet in his room, where police said they found the drugs in a gift bag.

As for the underlying cause being premised on a law that didn't say what police (and Mayor Ardis) wanted it to say, Judge Keith is less decisive.

Elliott’s attorney, Dan O’Day, sought to have the warrant declared invalid, arguing that police made a mistake and that anything found in the house should be thrown out of court.

Keith said he couldn’t make such a finding. He said the law was vague, and there was no case law that could guide judges on what legislators meant when they wrote the law.

But the prosecutor could make that decision, without the intercession of legislators or case law. He simply found that the law did not apply to Daniel's Twitter account and dropped the charges. Keith seems to be unable to wrap his mind around the fact that a warrant served to seize items and detain someone for not committing a crime is inherently flawed. That this was all uncovered after the raid took place does not excuse actions directed and led by a police chief and detective who admitted in emails that they knew the law didn't apply.

The "probable cause" was bogus from the start. The officers' actions in Elliott's bedroom aren't relevant because the whole search was a farce predicated on a deliberate misreading of a statute. The warrant may as well have stated it was seeking evidence of "harboring office supplies" or "manufacturing sandwiches without a license" for all the legal force it actually had behind it. While the warrant application lists "cocaine, heroin and drug paraphernalia" as things "reasonably" believed to be on the premises (no specific mention of marijuana or any other drugs, however), the statute clearly stated as the motivating force is False Personation, which doesn't cover Jon Daniel's Twitter account.

The police went after a Twitter account holder who had violated no laws and netted themselves a drug bust. The fact is, the police had no right to enter the premises in the first place and certainly shouldn't benefit from items seized that had nothing to do with the electronics (or other items) specified in the warrant application.

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]]>in the weeds finding some weedhttps://www.techdirt.com/comment_rss.php?sid=20140920/10371228589Mon, 16 Jun 2014 05:35:00 PDTPeoria Mayor Continues To Defend Police Raid Of Twitter User's Home, Threatens To Sue For DefamationTim Cushinghttps://www.techdirt.com/articles/20140614/10540627581/peoria-mayor-continues-to-defend-police-raid-twitter-users-home-threatens-to-sue-defamation.shtml
https://www.techdirt.com/articles/20140614/10540627581/peoria-mayor-continues-to-defend-police-raid-twitter-users-home-threatens-to-sue-defamation.shtmlACLU's announcement of its lawsuit against him (and several others) over the actions taken to shut down a parodic Twitter account. Ardis' "press conference" was really nothing more than him reading a prepared statement and refusing to answer any questions.

His statement shovels blame on the media, complains about having his "identity stolen" and goes long on pointing out that the Twitter account (or "site," as he prefers to call it) was not clearly marked as a parody at its inception. But the highlight by far is Mayor Ardis reading some of the tweets delivered by the account.

Ardis still seems to think he's completely right, but nearly everything he states is wrong.

First off, while the account wasn't marked as a parody when it first went live (March 9th), it had been by three days later (March 12th). Despite this, the mayor and the police continued their hunt of the account's owner. This hunt continued even after they managed to convince Twitter to suspend the account (March 20th).

Ardis repeats the claim that the account wasn't marked as a parody, as though that makes the entire month of police activity past the point of the account's shutdown (and six weeks past the point the account was marked as a parody by Jon Daniel, the account's owner) completely appropriate. Separately, while the lack of being marked as parody for three days may have violated Twitter's terms of service, it has no real bearing on the fact that it's protected speech. Mayor Ardis seems to think that unless something is marked as parody, it's not parody. But the point that many people were making, was that anyone reading the crazy statements on the Twitter feed would recognize it as obvious parody for being so extreme. In fact, having Mayor Ardis read out some of the tweets only seems to confirm the point. What he thinks is so conclusive as evidence that he's right, really only seems to prove the opposite: that the account was making statements so extreme and ridiculous that they were clearly parody, and not real.

Ardis also attacks the media for misrepresenting the facts. That's very hard to do when you're quoting police reports and police department/mayor's office emails directly. Since day one, the media has portrayed this event as Mayor Jim Ardis abusing his power to shut down a Twitter account he didn't like -- a portrayal that is borne out by the documents obtained from public records requests.

He also claims the media is being hypocritical by claiming the account was harmless while simultaneously refusing to print the "offensive" content of the tweets. This is his stupidest assertion. A Twitter account that did nothing but tweet out repeated profanities would be harmless while still being something most journalistic entities wouldn't print verbatim. Arbitrary standards for print are not legal standards for obscenity.

Either way, just because many people may find the account's tweets highly distasteful (and probably wouldn't retweet @grandma, etc.), it still doesn't make the speech less protected or Mayor Jim Ardis any more "right" about pursuing the person behind the account. Once the account was marked as parody, such that it complied with Twitter's terms of service, that should have been the end of it.

[A]ccording to a source inside City Hall, the officials who aggressively pursued Daniel, the creator of the account, were also wrong in a much more mundane way: They thought I was behind @peoriamayor and assumed I worked for the local paper, the Journal Star...

In an email that was released because of a Freedom of Information Act request, Ardis asked his subordinates what “JS reporter” lived with Daniel, and a police official said he didn’t know. If the source in City Hall is correct, Ardis was convinced that reporter was me, and likely thought that by exposing me as the foul-mouthed fiend behind @peoriamayor he’d ruin my reputation as a journalist and that of the Journal Star in the process.

This adds a bit more background to the mayor's apparent disdain for the media. Glawe also points out that the braintrust behind the account shutdown not only seemed to have a poor grasp of the law (perhaps intentionally), but was also mystified by the technical aspects of dealing with an online social media platform.

At one point, some city officials and cops thought they could call Twitter to have @peoriamayor shut down, so it’s no surprise that they apparently couldn’t be bothered to google my name and find out who I was and whom I work for.

In related news, Peoria Police Chief Steve Stettingsgaard has stepped down to take a job with Caterpillar, Inc. While his entire tenure at the head of the PPD has been marked with controversy, there's no doubt this latest incident played a part in convincing him to exit the law enforcement business.

Bizarrely, Mayor Ardis hints he's looking at pursuing someone (Jon Daniel or possibly even Twitter itself) for "defamation," apparently forgetting the email conversation he had with Chief Stettingsgaard back on March 11th.

Mayor/Manager, I reviewed this matter with Detective Feehan. He is in the process of shutting down the account as you saw from my last email. This phony Twitter account does not constitute a criminal violation in that no threats are made. I'm not sure if it would support a civil suit for defamation of character. I'm not an expert in the civil arena but my recollection is that public officials have very limited protection from defamation.

If Ardis decides to pursue this, he'll just be adding to his list of highly-public debacles. His defensive press conference indicates he's unable and unwilling to learn from his mistakes. There's no case to be made here, especially if Ardis decides to go after Twitter itself for the actions of one of its users. But it appears Ardis has dignity to burn, even if most of it is riddled with self-inflicted wounds.

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]]>at-rock-bottom-but-still-working-that-shovelhttps://www.techdirt.com/comment_rss.php?sid=20140614/10540627581Tue, 13 May 2014 05:40:40 PDTEmails Show Peoria Police Knew There Was No Legal Basis To Pursue Twitter User Who Parodied Mayor Jim Ardis [Updated]Tim Cushinghttps://www.techdirt.com/articles/20140512/06145327202/emails-show-peoria-police-knew-there-was-no-legal-basis-to-pursue-twitter-user-who-parodied-mayor-jim-ardis-updated.shtml
https://www.techdirt.com/articles/20140512/06145327202/emails-show-peoria-police-knew-there-was-no-legal-basis-to-pursue-twitter-user-who-parodied-mayor-jim-ardis-updated.shtml
Thanks to FOIA requests, more information has been uncovered about Peoria, IL mayor Jim Ardis' quest to shut down a parody Twitter account. Shawn Musgrave at Muckrock has secured copies of the warrants and police reports related to the Peoria Police Dept.'s raid of Jon Daniel, the person behind the not-even-illegal @peoriamayor Twitter account. Matt Buedel at the Peoria Journal-Star has obtained email correspondence between the mayor and the police department.

Ardis and others learned of the account on March 11 and sent dozens of emails over the next few days, apparently panicked by the idea that someone with a few dozen Twitter followers was making fun of the mayor. On March 12, Ardis himself asked City Manager Patrick Urich, “Any chance we can put a sense of urgency on this?” Urich passed that request on to Settingsgaard, saying, “Quickly please.”

Ardis (and his office) pursued this vigorously, telling the Chief of Police (Steve Settingsgaard) that he definitely wanted to prosecute. The first of three search warrants went out March 13th, at which point the Twitter account had already been marked as a parody. Twitter informed the city of this fact, but the push went on regardless. Twitter yanked the account on March 20th, but that still didn't stop Ardis from pushing a very compliant police department into raiding Daniel's home on April 15th.

Glawe points out that, according to obtained emails, the police were initially reluctant to pursue this as they could see no evidence of any laws being broken, at least according to an email sent by Chief Settingsgaard to Mayor Ardis on March 11th.

Mayor/Manager, I reviewed this matter with Detective Feehan. He is in the process of shutting down the account as you saw from my last email. This phony Twitter account does not constitute a criminal violation in that no threats are made. I'm not sure if it would support a civil suit for defamation of character. I'm not an expert in the civil arena but my recollection is that public officials have very limited protection from defamation. I asked (Feehan) about identity theft and he advised it did not qualify because the statute requires the use of personal identifying information such as a social security number, DOB, etc., and a financial gain form (sic) the use of that information. Twitter does not require identifying information other than an email address and name, and there appears to be no financial gain.

Detective Feehan followed this up with his own email, again confirming that Daniel appeared to have broken no laws with his parody account, as well as pointing out he had asked for Twitter to remove the account.

But Detective Feehan, being the detective he is, dug around in Illinois law until he found the state's "false personification" statute and used this to pursue the owner of the account. The Peoria Police were able to push this past local judges with a very expansive warrant, which also contained claims that the occupants of the house were likely involved in some very nasty criminal activity.

In his search warrant affidavit, detective Stevie Hughes wrote that there was “probable cause to believe” that the seized data would contain “evidence, fruits, contraband, and instrumentalities of the dissemination and possession of child pornography.”

This, along with a claim that the house would be full of drug paraphernalia related to "cocaine and heroin" use, was used to justify the seizure of nearly every electronic device in the house.

Post-backlash, the district attorney (whose office played a big part in crafting the three warrants used in this case) announced that no charges would be filed in relation to the Twitter account. That doesn't do much to help Daniel's friend, who is still facing drug charges for possession of marijuana thanks to the Peoria police's willingness to help Mayor Ardis violate others' First Amendment rights.

April Clemons, who was one of several to speak in the public comments portion of a meeting that stretched nearly to 11 p.m., told Mayor Jim Ardis she is the “proud owner of a new Jim Ardis parody account."

Clemons then told Ardis he “screwed up.” Near the end of her comments, Clemons turned to Chief of Police Steve Settingsgaard and told him the same.

For his part, Chief Settingsgaard defended his actions, along with the actions of his officers, saying he was not a "jack-booted thug" and that he was "pleasantly surprised" that only four officers served the warrant at Daniel's residence (contrary to earlier reports of seven officers being involved). "Normally, there's more."

Mayor Ardis, after defending his actions by claiming that a.) the existence of a parody Twitter account took away his free speech rights, and b.) that it was the media's fault that he looked like a thin-skinned, power-abusing ass, has remained completely silent about the incident. Perhaps this has been prompted by the city's lawyers, who realize they may soon be on the receiving end of civil rights lawsuits because of the police department's actions.

The ACLU of Illinois now represents Mr. Daniel, the creator of the Twitter parody. Mr. Daniel, like other parodists, has a First Amendment right to post these tweets. He was engaging in a time-honored tradition of poking fun at public officials — even when the public official doesn’t like it. Because Mr. Daniel’s activities were protected, they should never have led to a warrant and search of his home. The police activity in this case was unnecessary and contrary to both the First and Fourth Amendment protections to which he was entitled.

In the coming weeks, the ACLU of Illinois anticipates bringing legal action in support of Mr. Daniel against those officials who are responsible for the violations of his rights. We hope this action will send a strong signal to all that wrongful use of the police power to suppress protected speech, even when it is critical or makes fun of public officials is an abuse of power and is not acceptable.

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]]>but, you know, whatever it takes to keep the mayor happyhttps://www.techdirt.com/comment_rss.php?sid=20140512/06145327202Thu, 24 Apr 2014 07:38:00 PDTMayor Ardis Defends Police Raid, Complains That Parody Twitter Account Used Up All The Free SpeechTim Cushinghttps://www.techdirt.com/articles/20140423/17345027010/mayor-ardis-defends-police-raid-complains-that-parody-twitter-account-used-up-all-free-speech.shtml
https://www.techdirt.com/articles/20140423/17345027010/mayor-ardis-defends-police-raid-complains-that-parody-twitter-account-used-up-all-free-speech.shtml
As we recently covered, Jim Ardis, the absurdly thin-skinned mayor of Peoria, IL, got the boys in blue to raid a house over a parody Twitter account that portrayed him as a.) a possible drug user, b.) a possible patron of the world's oldest profession and c.) "trill as fuck." Peoria's Finest have never been finer, deploying seven plainclothes officers to nail a dangerous tweeter whose Ardis-mocking account had been shut down by Twitter weeks before. Bonus: drugs were discovered during the raid, which meant the cops could at least declare victory over marijuana use, if not the internet itself.

"I still maintain my right to protect my identity is my right," Ardis said in an interview with the Journal Star before the council meeting.

"Are there no boundaries on what you can say, when you can say it, who you can say it to?" Ardis said. "You can’t say (those tweets) on behalf of me. That’s my problem. This guy took away my freedom of speech."

Presumably prior to this awesome show of force, the mayor had been forced to sit quietly with his hands folded on his desk. But now that he's stomped on someone else's First Amendment rights, he can finally freely speak.

A review of state law indicates the account holders of now-shutdown Twitter account, @peoriamayor, didn’t break the law because the actual crime alleged, “false personation of a public official,” has to be done in person, not over the Internet or other electronic media, said State’s Attorney Jerry Brady.

"At this time, no, because subsection (b) doesn’t include the use of electronic media," he said.

There are also questions as to whether the unrelated drug charge will stick because, well, it's completely unrelated. The warrant used to raid the house appears to be on legally shaky ground already, and its supposed purpose was to effect arrests and seize evidence related to a Twitter account, not root around until something better presented itself. But it could be weeks before that part is sorted out. The States Attorney says it's not uncommon for search warrants and affidavits to take "several days to weeks" to arrive at his office. (Must send these via trans-Atlantic steamer, I guess...) One imagines documents related to this case will take longer than usual.

Meanwhile, the population of Peoria, along with the city council, is extremely angry that Ardis abused his position. A long, heated discussion of this incident included members decrying Ardis receiving preferential treatment from the Peoria PD, as well as generally lamenting how his actions have turned Peoria into a national laughingstock.

Ardis, however, seems unfazed. He still firmly believes he did nothing wrong. The problem here is everyone else, starting with the media.

"You’re the ones responsible for getting full information, but not to spin it in the way you want to spin it," Ardis said to a Journal Star reporter. "To make us look stupid."

"It’s your responsibility to put actual information out there and cover both sides. Not to opine. And that didn’t happen. Clearly, that didn’t happen."

Hey, Ardis. Only one person can make you look stupid, and he's that person up there claiming the First Amendment can't be evenly divided among several people. The actual information is out there. And it all adds up to Ardis not being able to take a joke, ordering cops to arrest people he doesn't find funny, and complaining about "suddenly" being universally reviled.

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]]>i'd find something else to spend the reelection fund onhttps://www.techdirt.com/comment_rss.php?sid=20140423/17345027010Wed, 23 Apr 2014 05:43:00 PDTFive Illinois Cops Are Caught Lying On The Stand When Defense Produces A Recording Contradicting Their TestimonyTim Cushinghttps://www.techdirt.com/articles/20140418/19545926965/five-illinois-cops-are-caught-lying-stand-when-defense-produces-recording-contradicting-their-testimony.shtml
https://www.techdirt.com/articles/20140418/19545926965/five-illinois-cops-are-caught-lying-stand-when-defense-produces-recording-contradicting-their-testimony.shtmlCops lie. Citizens know this. Defense attorneys know this. Prosecutors know this. Most importantly, judges know this. But rarely does it have any effect on the outcome of the case at hand. But in what has been described as a "Perry Mason moment," five Illinois police officers were caught lying on the stand. (h/t to Trevor Debus)

A seemingly routine suppression hearing in a suburban Chicago courthouse last month took an unexpected dramatic turn when video from a police car was introduced that disproved the testimony of five police officers.

They had said Joseph Sperling was arrested after officers who pulled him over in a traffic stop smelled marijuana, searched the vehicle and found nearly a pound in a backpack lying on the back seat of his car. But the Glenview police video showed the search occurred only after Sperling was taken from his car, frisked and handcuffed, reports the Chicago Tribune (sub. req.).

I suppose once the film rolled, there was little the judge could do but address it. It's one thing for a cop to lie in the courtroom and have it discovered months, weeks or even years later. It's quite another when the testimony is rebutted by video evidence during the same hearing.

"All the officers lied on the stand today," said [Judge Catherine] Haberkorn, who herself is a former prosecutor, at the March 31 hearing. "So there is strong evidence it was conspiracy to lie in this case, for everyone to come up with the same lie."

Joseph Sperling says in his suit that Chicago police asked Glenview officers at the scene of his arrest last June to turn off their squad car dashcams. At least one Glenview officer didn't, resulting in video footage that persuaded a Cook County Circuit Court judge to grant a motion to suppress seized evidence, because police testimony contradicted what the camera showed.

This case has obviously provoked quite a bit of discussion as to how often cops lie and what the final arbiters -- the judges -- do when they take this knowledge into consideration. The answers, unfortunately, are depressing. Even if these temporary desk jockeys manage to retain their jobs, one would think their days as credible witnesses are over. Nothing could be farther from the truth.

After a cocktail or two, Harold talked about how his experience as a judge changed him. Case after case, defendant after defendant, victim after victim, made it all a blur. Sure, cops lied. Everybody knew cops lied. Everybody knew cops lied in every case. That was the game. It was their job to put the bad guy away, and the way to win the game was to speak the magic words that the system accepted as necessary…

What was he supposed to do, Harold asked? They may not all be guilty, but they all were guilty. No one could pluck out the one in a hundred who didn’t deserve to be there, and he wasn’t going to cut everyone free because he couldn’t tell who was who. […] He had a job to do, to keep the cattle moving toward the slaughter. Harold could be a rather charming guy, personally. As a judge, he was utterly despicable.

I am a shitty judge of credibility. Truly, I am. See here for what happened when I believed a defendant and it blew up in my face with an editorial cartoon and the whole nine yards. Thus, when forced to judge between a cop and a defendant it is safer to believe the cop than the defendant particularly if a judge cares about his or her reputation. While pleading the subconscious in mitigation, there was a period of time when I really thought I might make it to the Circuit if I were a good little boy. See what happened to Judge Baer when he “screwed” up.

Lorin Duckman, a former New York judge, noted how the system lends itself to accommodating lying cops, if only to keep the system moving at the pace that pleases most of those involved.

It’s not just about the trials. Jurors don’t want to sit, don’t understand the instructions and cannot consider what the sentence should be. They cannot tell if a person is lying or not and tend to believe those who look like them or wear badges, despite instructions to the contrary. It’s not about did the accused did it or didn’t do it, most of the time. It’s about the penalties, the sentences, and the lack of a future when one tries to put a life together after doing time. It’s about judges who need to move calendars, jailers and bailiffs, court reporters and clerks who depend on a steady stream of defendants for their livelihood ...

But Duckman also points out that judges have their own livelihoods to consider, and speaking aloud about the fact that cops lie on the stand tends to short-circuit their futures.

[M]ost of all it’s the Judges who sit silently, listening to the bartering, accepting the stories for fear that they will be removed if they question, dismiss or offer justice. Break my hear[t], they did.

A comment I made, “cops lie all the time,” was introduced as evidence at my removal hearing and served as the basis for finding me biased. I couldn’t have been the only judge who believed that, could I?

The system is broken all the way up and all the way down. These five cops were very possibly only called out because it was unavoidable. Their punishment for being caught perjuring themselves has been desk duty, something that may seem tedious compared to pulling people over and illegally searching their vehicles, but can hardly be considered a true punishment. It's not as though the facts are disputed. The cops are being "investigated" after lying in court in front of a judge and several witnesses. There's literally nothing to "investigate."

This is just two police departments (Glenview and Chicago) buying time until they can weigh possible punishments and outcomes. As few judges are willing to confront the fact that cops lie with the same frequency as other human beings, just as few PDs are willing to terminate officers (partly due to pushback from officers' unions), no matter the wrongdoing.

Yesterday I met with our new police chief (city of 250,000) I I told him I was getting tired of not having video or audio recordings of defendants statements. I said I felt juries disbelieved the rendition by the officer (especially a narcotics officer). I added, I was not sure I was going to believe another citizen consented to the search of his vehicle unless I had a written signed consent to search (which they have). The Chief looked like I had kicked his dog. I said “Hey, the jurors expect this in this age of technology.” We will see.

Looking at this and another set of isolated incidents -- the pushback by two judges against overly-broad search warrants -- gives a modicum of hope that law enforcement will be finally forced to play by the rules that have been existent since shortly after the founding of this nation. It's too little, far too late and it's marked by outliers rather than exceptions to the rule. But at least it's something. And the more the public is informed about the routine abuse of civil liberties by law enforcement, the less those tasked with handling the intersection of cops and civilians will be able to ignore the reality of the situation and blithely (and blindly) believe badges denote a more trustworthy class of human.

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]]>liars-apparently-still-trustworthy-enough-to-run-a-deskhttps://www.techdirt.com/comment_rss.php?sid=20140418/19545926965Mon, 21 Apr 2014 05:46:58 PDTPolice Raid Apartment, Seize Electronics Related To A Long-Suspended Twitter Account Parodying Town's MayorTim Cushinghttps://www.techdirt.com/articles/20140418/09431926959/police-raid-apartment-seize-electronics-related-to-long-suspended-twitter-account-parodying-towns-mayor.shtml
https://www.techdirt.com/articles/20140418/09431926959/police-raid-apartment-seize-electronics-related-to-long-suspended-twitter-account-parodying-towns-mayor.shtml
It doesn't matter how you look at this situation. This is an abuse of power. No matter how much benefit of a doubt you give the protagonists -- even if you cut the Peoria, IL police so much slack you're both falling over backwards (to borrow a Sparks lyric) -- this situation looks like the end result of an overly-close relationship between city politicians and local law enforcement. How else would you explain the following?

Illinois police seized computers and mobile phones while raiding a house whose owner was suspected of parodying the town mayor on Twitter.

In all, five people following the Tuesday evening raid were taken to the Peoria Police Department station for questioning, local media report.

The Twitter account, which had all of 50 followers, and had been already shut down by Twitter "weeks ago," became the flash point for a police raid that involved seven plainclothes officers and the detainment of five people - two of whom were cuffed at their place of employment.

If the mayor felt there was something wrong with this "impersonation," he had plenty of other options available that wouldn't have resulted in this egregious show of force. For one, he could have contacted Twitter and asked for the account to be suspended. (And, for all we know, he did. [UPDATE: see below.] The account hadn't been active for "weeks" by the time the raid took place.) Second, he could have pursued this through civil action (if he felt the account was defamatory, etc.). There was no reason to involve the police in this -- unless, of course, this was the sort of thing the Peoria Police enjoy doing.

Peoria is a town of 116,000 people. It has some problems with crime and also some problems with the police, which you can get a sense of if you follow my work or the work of Matt Buedel, the Journal Star crime reporter who broke a several stories last yeardetailing misconduct within the police department, including an attempt to catch a city councilman in a prostitution sting. The Illinois Attorney General’s Office ruled that an internal report regarding some of those acts of alleged misconduct should be released, but the city and the police department refused. (That report was apparently “lost” by Settingsgaard, and somehow ended up in the hands of a panhandler who, coincidentally, I used to work at a gas station with and know to be a pretty serious drug addict.)

The prostitution sting involved 12 task force officers staking out a Red Roof Inn overnight in hopes of catching Dan Irving, a city council candidate, with a prostitute. This sting ran the day after a close primary election. (Irving went on to lose the general election.) The overnight stakeout was ultimately fruitless as Irving never arrived at the motel with or without a prostitute.

Evidence exists that the Peoria Police Department is willing to be politically motivated. These officers trashed rooms and grabbed every device with an internet connection (including some Xboxes), proclaiming they were linked to an "internet crime." Although no one's been charged yet (other than an unrelated marijuana possession charge -- hooray for the fortuitous results of a bogus police search), the chief of the Peoria Police has dug deep enough into Illinois law to find something to use against the person running the long-suspended, inside joke of an account.

Peoria Police Chief Steve Settingsgaard said the department was investigating misdemeanor charges of impersonating a public official, which carries a maximum one-year jail term and $2,500 fine. The chief, according to the Southern Illinoisan, said it "appears that someone went to great lengths to make it appear it was actually from the mayor."

Really? "Great lengths?" How many Twitter users would have believed the following was issued by the Mayor or his office?

Beyond that, the account bio was changed on March 10th to indicate the account was a parody. A couple of weeks later, it was suspended. Three weeks after that, Peoria police corral five people and their electronics in order to stop something that was already dead and never popular.

Now, news of this has spread nationwide, and as Justin Glawes points out, it has led to the generation of several more fake Peoria Mayor accounts. The colossally stupid effort has done little more than given the nation a reason to dig into the misdeeds of the Peoria Police and an indication of just how thin Mayor Ardis' skin is.

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]]>from-overkill-to-backfire-in-record-timehttps://www.techdirt.com/comment_rss.php?sid=20140418/09431926959Tue, 25 Mar 2014 14:33:00 PDTIllinois Supreme Court Overturns Insane Recording LawsTimothy Geignerhttps://www.techdirt.com/articles/20140320/11095226634/il-overturns-states-insane-recording-laws.shtml
https://www.techdirt.com/articles/20140320/11095226634/il-overturns-states-insane-recording-laws.shtml
When it comes to insane bans on recording police and public officials, the granddaddy of them all has always been Illinois' eavesdropping law, which made it a federal crime to surreptitiously record any public official, even if they were amongst the public while performing their duties. The law was abused with such disregard for the Bill of Rights that court after court ruled the law unconstitutional. Those cases primarily dealt with the recording of law enforcement while performing their duties, something which ought to be a national right, given the ubiquity of cameras that are recording public citizens.

Today's decision(PDF) extends that analysis to other public officials as well as private citizens when they do not have a reasonable expectation of privacy. The justices note that the eavesdropping ban "criminalizes a wide range of innocent conduct," including "the recording of conversations that cannot be deemed private: a loud argument on the street, a political debate on a college quad, yelling fans at an athletic event, or any conversation loud enough that the speakers should expect to be heard by others. None of these examples implicate privacy interests, yet the statute makes it a felony to audio record each one. Judged in terms of the legislative purpose of protecting conversational privacy, the statute's scope is simply too broad."

It's an immensely satisfying decision that turns the country's most draconian anti-recording law on its head. Illinois politics being what they are, there may be no place in the country that needs recordings of public officials more than this state I call home. Attempts to criminalize such recordings in a way that went so far beyond privacy concerns were clearly an attempt to keep the local population at bay while corruption and illegality raged on. More impressively, the court specifically weighed the public's free speech rights against any concerns by public officials and found for the common citizen.

Because the eavesdropping ban "burdens substantially more speech than is necessary to serve a legitimate state interest in protecting conversational privacy," the court concludes, "it does not survive intermediate scrutiny. We hold that the recording provision is unconstitutional on its face because a substantial number of its applications violate the first amendment."

And so you can now record interactions with the folks whose salary you pay via taxes in the Land of Lincoln. Frankly, for a state known for corrupt public "servants", this has been a long time coming.

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]]>i-hear-youhttps://www.techdirt.com/comment_rss.php?sid=20140320/11095226634Thu, 6 Mar 2014 20:02:00 PSTIllinois Gas Company Facing Class Action Suit Over Service Charges May Be Blocked By Eavesdropping Act From Presenting Recorded EvidenceTim Cushinghttps://www.techdirt.com/articles/20140304/08182626425/illinois-gas-company-facing-class-action-suit-over-service-charges-may-be-blocked-eavesdropping-act-presenting-recorded-evidence.shtml
https://www.techdirt.com/articles/20140304/08182626425/illinois-gas-company-facing-class-action-suit-over-service-charges-may-be-blocked-eavesdropping-act-presenting-recorded-evidence.shtml
We've written a lot about the state of Illinois' infamous Eavesdropping Act, a law that has been routinely abused by Illinois law enforcement officers to prevent citizens from recording them while they work. After a long legal battle that nearly made its way to the Supreme Court, the courts found that the use of the law to prosecute citizens who record police officers was unconstitutional and the latest court to hear the state's arguments suggested the law be repealed altogether.

The law is still on the books at the moment (although LEOs can no longer use it against camera-wielding citizens), which may come in handy for the plaintiffs of a class action suit against an Illinois gas company. (h/t to Above the Law)

The lawsuit claims the gas company charged customers unnecessary fees to cover gas line leaks and repairs. According to an investigation that preceded the lawsuit, Nicor Gas collected nearly $26 million in 2009 while paying out only $600,000 in benefits. In a class action lawsuit filed in 2011, the plaintiffs allege that Nicor also charged several customers $19.95/mo. for appliance coverage (while labeling it only as "Nicor Service Charge" on the bill).

The utility recorded millions of phone calls over the course of a decade and plans to “divulge them outside of Nicor and to use them in court as they litigate the consumer class action,” according to a statement about the case...

“The Illinois Eavesdropping Act flatly prohibits corporations who collect or make such recordings from divulging any part of them to any third party and prohibits such recordings be used in court proceedings,” said [Adam] Levitt (plaintiffs' attorney).

“Nicor Gas claims that all customers recorded heard a ‘warning’ before being recorded, and ‘consented’ by remaining on the line after the warning was given. But under the law, any consent only gave Nicor Gas a right to record, not to divulge or use the recordings. Any ‘consent’ they got from customers that permitted them to record was for the limited purpose of internal quality assurance – not for divulgence to outside parties, and certainly not for use in public court proceedings,” according to Levitt.

Even if this use of the Eavesdropping Act may be somewhat questionable given the circumstances (the most probable defense against the claims is that customers agreed to these charges during phone conversations with Nicor Gas), it's hard to see how the power company will route around the specifics of the law.

No communication or conversation or any part, portion, or aspect of the communication or conversation made, acquired, or obtained, directly or indirectly, under this exemption (j), may be, directly or indirectly, furnished to any law enforcement officer, agency, or official for any purpose or used in any inquiry or investigation, or used, directly or indirectly, in any administrative, judicial, or other proceeding, or divulged to any third party.

Exemption (j) covers recorded business-to-consumer "oral telephone solicitation and marketing" recordings. Incoming calls ("What the hell is THIS charge?") are also covered by this exemption.

For the purposes of this subsection (j), "telephone solicitation" means a communication through the use of a telephone by live operators:

(i) soliciting the sale of goods or services; (ii) receiving orders for the sale of goods or services; (iii) assisting in the use of goods or services; or (iv) engaging in the solicitation, administration, or collection of bank or retail credit accounts.

According to a ComfortGuard marketing script, Nicor call-center reps are instructed to tell customers "the utility is only legally responsible to make the situation safe or make repairs to its own facilities. What that means is that the property owner (such as yourself) may have to find and hire an independent contractor to come in, do an inspection and then make those repairs. That can be expensive, and it could also mean days without any gas to heat the home, cook and so on."

We'll have to see where Nicor goes with this, but the allegations are pretty damning, and it's hard to see how its own sales tactics and vague line item descriptions are going to help its case. Even if it is interesting to see this law being used as a defense mechanism rather than a weapon against citizens, it only helps to highlight how badly written the Illinois Eavesdropping Act is. If nothing else, it presents yet another reason for legislators to seriously consider scrapping the law and starting over.

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]]>bad-laws-have-only-legally-dubious-useshttps://www.techdirt.com/comment_rss.php?sid=20140304/08182626425Wed, 26 Feb 2014 16:35:00 PSTGoogle's Fight Against Distracted Driving Laws Might Not Be A Bad Thing For The Inevitable, Glorious Transhumanist FutureKarl Bodehttps://www.techdirt.com/articles/20140225/11294926344/googles-fight-against-distracted-driving-laws-might-not-be-bad-thing-inevitable-glorious-transhumanist-future.shtml
https://www.techdirt.com/articles/20140225/11294926344/googles-fight-against-distracted-driving-laws-might-not-be-bad-thing-inevitable-glorious-transhumanist-future.shtmlother people might be in the passenger seat and interested in using the technology. Banning some behaviors can also cause people to try to hide the fact they're doing them, which has the potential to be more dangerous. While there's absolutely no doubt that distracted driving is a serious, significant problem (especially texting behind the wheel), the regulatory fixes proposed can often bring up a laundry list of unintentional new issues a politician with a fleeting understand of tech (and a limited imagination) might not be sensitive to.

Efforts to ban Google Glass while driving are similarly complicated. Reuters this week reported that Google lobbyists have been busy trying to shut down distracted laws in a handful of states, including Illinois, Delaware, and Missouri. The laws, also being proposed in New York, Maryland and West Virginia (among others), would in many cases ban outright the use of wearable computing devices. While there's no mistaking that Google's lobbying efforts are about protecting revenues first and foremost, there does seem to be a salient point being made in the midst of the discussion:

"While Glass is currently in the hands of a small group of Explorers," the company said, "we find that when people try it for themselves they better understand the underlying principle that it's not meant to distract but rather connect people more with the world around them."

In my mind, Google Glass is effectively just a heads up display. It's an early, clunky plastic version of what's to come, but it's just a HUD. As any military pilot (or hey, the terminator) could probably attest, there could very well be useful functionality embedded in such devices that provides the driver with additional information that could actually make them safer or a better driver. Blind spot monitoring and improved-view HUD cameras, traffic congestion warnings in the corner of your eye, subtle alerts about dangerous upcoming road conditions (think a crowd-sourced Waze or some variant with a HUD) -- are they all bad? They're all to be banned?

That's not to say Glass and future variations of the concept won't be abused; people who aren't bright will certainly try to watch YouTube videos while driving eighty miles an hour on the Long Island Expressway. But people are either dumb, or they aren't. Your fellow highway dwellers are either entirely awful at operating motor vehicles -- or they aren't. If they're simply bad at it, a bevy of new regulations or rules won't protect them (or you) from them being distracted by pretty much everything -- including chickens, a dropped cigarette, signs, loud noises, other people, farts, or their own thoughts.

Enforcement also seems like a tricky proposition here. As Glass naturally evolves and other companies jump on board, it's going to move from an obvious piece of wearable plastic computing, to contacts, eyeglasses or implants that aren't really distinguishable from normal human features. How does a police officer prove you were using this technology for distracting purposes, versus using it to help drive? They don't: as with current texting rules they just doltishly ban you from doing everything on a phone, even if you're just updating GPS settings. How would law enforcement confirm what you're doing on your retina's HUD without violating your privacy? I'd imagine they won't.

Not to make a habit of siding with lobbyists too often, but it seems like outright bans on what is effectively heads up displays is a bridge too far. I'm not sure tech-challenged DC can effectively and intelligently navigate the transhumanist concerns of tomorrow when they're not even capable of understanding the simple technology issues of today. That said, I'm all for other, more ingenious ways of getting nitwits off the road if anybody has some.

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]]>I-was-absolutely-not-watching-porn,-officerhttps://www.techdirt.com/comment_rss.php?sid=20140225/11294926344Mon, 21 Oct 2013 19:41:59 PDTIllinois The First State To Throw Out Laws Making Amazon Collect Sales Tax Based On AffiliatesMike Masnickhttps://www.techdirt.com/articles/20131021/01044224940/illinois-first-state-to-throw-out-laws-making-amazon-collect-sales-tax-based-affiliates.shtml
https://www.techdirt.com/articles/20131021/01044224940/illinois-first-state-to-throw-out-laws-making-amazon-collect-sales-tax-based-affiliates.shtmlbunch of stories about Amazon cutting off affiliates in various states. The issue was mainly that states are desperate for sales tax revenue -- and there's something of an ongoing dispute about who's responsible for paying and collecting sales tax. Technically, if you buy via "mail order" and don't pay a sales tax, you're still supposed to pay up the sales tax to your state yourself. It would appear that almost no one does this. If companies have a business "nexus" in the state, then they are supposed to be collecting the sales tax at the time of the order, and sending it on to the state. The issue here was that states passed laws (almost all of which targeted Amazon) arguing that if Amazon has affiliates in the state, that counts as having a nexus, and thus Amazon would need to start collecting the sales tax. But, an affiliate is hardly the same thing as having a physical presence in a state. As anyone who's done an affiliate program knows, all it really means is that you're agreeing to advertise for the retailer, and if any sales come through, then you get a cut. They're not employees. They're not even contractors. They're just advertisers.

In NY, Amazon sued over their law, but the lawsuit got tossed and continues to wind through the appeals process. However, in Illinois, it appears that a similar law has been struck down by the Illinois Supreme Court, who said it violated federal laws prohibiting discriminatory taxes on online sales. And make no mistake about it: this is targeted directly at online sales.

But Justice Anne Burke, writing for the court's majority, questioned whether there was any substantial difference between out-of-state businesses reaching Illinois consumers through a click-through-nexus approach or through other approaches that aren't taxed.

"The click-through link makes it easier for the customer to reach the out-of-state retailer," Burke wrote. "But the link is not different in kind from advertising using promotional codes that appear, for example, in Illinois newspapers or Illinois radio broadcasts."

There is one dissent, which argues that since this isn't imposing any new taxes, just who collects them, that there is no discrimination issue here at all. Either way, all of this may be moot as there's increasing support in Congress to basically force the issue on internet companies, making them collect the sales tax for states.